The ACIT.Central Circle-1, Surat V. M/s. Saraswat Enterprise, Surat

ITA 2879/AHD/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 6185 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 07-02-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 06-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income; Income from undisclosed sources; Corroborative evidences
• Section: 143(3); 80IB

Judgement Text

, * ** *, ,, ,* ** * IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD IZEKSN DQEKJ IZEKSN DQEKJ IZEKSN DQEKJ IZEKSN DQEKJ BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER ! I.T.A. NO. 2879/AHD/2013 FOR A.Y. 2011-12 ! I.T.A. NO. 2880/AHD/2013 FOR A.Y. 2011-12 (I) THE ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, SURAT. (II) THE ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, SURAT. ! VS. (I) M/S. SARASWAT ENTERPRISE 3 RD FLOOR, SARGAM HOUSE, OPP. ANDHJAN SCHOOL, GHOD DOD ROAD, SURAT (II) M/S. MILESTONE ENTERPRISE ' ! #$ ! PAN/GIR NO. : AAOFM 0120 H ( '% / APPELLANTS ) .. ( &'% ! RESPONDENTS ) ASSESSEE BY : SHRI K. MADHUSUDAN, SR. D.R. RE VENUE BY : SHRI R.B. SHAH, A.R. ' ( )*+ , / DATE OF HEARING 07/02/2017 -./0 *+ , / DATE OF PRONOUNCEMENT 27/04/2017 1! O R D E R PER SHRI MAHAVIR PRASAD, JUDICIAL MEMBER : THESE TWO APPEALS HAVE BEEN FILED BY THE REVENUE RESPECTIVELY ARE COMMONLY DIRECTED AGAINST THE ORDER OF THE COMM ISSIONER OF INCOME TAX(APPEALS)-II, AHMEDABAD, DATED 20/09/2013 FOR TH E ASSESSMENT YEAR (AY) 2011-12. - 2 - 2. REVENUES GROUNDS OF APPEAL IN ITA NO.2879/AHD/2013 FOR A.Y. 2011-12:- THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN DEL ETING ADDITION OF RS.4,90,00,000/- MADE ON ACCOUNT OF DISALLOWANCE OF DEDUCTION U/S 80IB(10) OF THE ACT, IGNORING THE FACT THAT THE ASS ESSEE DID NOT PRODUCE ANY SUPPORTING EVIDENCES WHICH CAN PROVE THAT THE U NACCOUNTED INCOME WAS ACTUALLY RECEIVED FROM THE PROJECT OF THE ASSES SEE. 3. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI ALS ON RECORD ARE AS UNDER:- IN THIS CASE, A SEARCH ACTION WAS CARRIED OUT OF 19 .01.2011 AND ASSESSMENT U/S 143(3) OF THE IT. ACT HAD BEEN COMPLETED ON 28. 02.2013 BY RESTRICTED DEDUCTION U/S. 80IB AT RS. 80,03,155/- AND REMAININ G DEDUCTION OF RS. 4,90,00,000/- WAS DISALLOWED. 4. DURING SEARCH ONE SMALL NOTE BOOK WAS SEIZED WHI CH WAS INVENTORIED AS PER ANNEXURE BS-2 OF THE PANCHNAMA. ON THE BASIS OF THE CONTENTS OF THE SAID PAGE, THE MAIN PERSON OF THE G ROUP SHRI KARSANBHAI M.PRAJAPATI WAS CONFRONTED AND IN ANSWER TO Q.NO.5 OF HIS STATEMENT ON OATH, HE ADMITTED THAT THE ENTRIES ON THE SAID PAGE ARE DATE-WISE, CONCERN- WISE DETAILS OF UNACCOUNTED MONEY RECEIVED BY THE M EMBERS OF THE CONCERNS. SHRI PRAJAPATI UNEQUIVOCALLY AND CATEGORI CALLY ADMITTED IN REPLY TO Q.NO.6 THAT THE AGGREGATE SUM OF RS.23.69 CRORES DECLARED BY HIM REPRESENTED UNACCOUNTED AND UNEXPLAINED NET INC OME OF CONCERNS EARNED OUTSIDE BOOKS OF ACCOUNTS AND THE TOTAL INCO ME OF RS.23.96 CRORES WAS OFFERED FOR TAXATION AS INCOME OF THE YEAR UNDE R CONSIDERATION I.E. - 3 - A.Y.2001-02; THE DETAILS OF DISCLOSURE YEAR-WISE, P ROJECT-WISE WERE AS UNDER: SR. NO. NAME OF CONSTRUCTION PROJECT NAME OF FIRM UNACCOUNTED TAXABLE INCOME (IN CR.) 1. SWASTIK RESIDENCY SARSWAT ENTERPRISE 4.9 2. SWASTIK MILESTONE MILESTONE ENTERPRISE 3.9 3. SWASTIK WOODS WOODS ENTERPRSE 3.3 4. SWASTIK VIHAR VIHAR ENTERPRISE 2.3 5. SWASTIK UNIVERSAL VIBHUTI ORGANISER PVT. LTD. 9.29 TOTAL 23.69 CRORE 5. IT IS SEEN FROM THE ABOVE THAT IN THE CASE OF AS SESSEE FIRM, THE UNDISCLOSED INCOME OFFERED WAS RS.4.09 CRORES. FROM THE STATEMENT OF SHRI PRAJAPATI, IT WAS CLEAR THAT THE OFFERED UNDIS CLOSED INCOME WAS UNEXPLAINED INCOME EARNED OUTSIDE THE BOOKS OF ACCO UNTS PERTAINING TO THE FIRM. 6. THE ASSESSING OFFICER ALSO OBSERVED THAT THE CLA IM WAS MADE BY THE ASSESSEE U/S.80IB AMOUNTING TO RS. 5,70,03,155/ - DURING THE YEAR UNDER CONSIDERATION AND THE SAID DEDUCTION WAS CLAI MED ON THE OFFERED AND DISCLOSED INCOME OF RS.4.9 CRORES. THE ASSESSIN G OFFICER VIDE SHOW CAUSE NOTICE DTD. 14.02.2013 ASKED THE ASSESSEE FIR M TO FURNISH FULL PARTICULARS/INFORMATION IN RESPECT OF 'ON MONEY' RE CEIVED ON SALE OF FLATS OF SWASTIK RESIDENCY IN THE PRESCRIBED FORMAT I.E. IT WAS ASKED TO FURNISH NAME AND ADDRESS OF THE PURCHASER, NAME OF THE SCHE ME, FLAT NO. AND THE AREA IN SQ. FT., DATE OF SALE DEED EXECUTED/SALE AG REEMENT, AMOUNT OF SALE DECLARED IN THE REGISTERED DOCUMENT, AMOUNT OF ON M ONEY RECEIVED AND - 4 - THE DATE WISE DETAILS OF 'ON MONEY' RECEIVED. THE A SSESSING OFFICE WAS OF THE VIEW THAT IF THE ASSESSEE FAILED TO SUBMIT THE REQUIRED DETAILS, IT WILL BE PRESUMED THAT SAID UNACCOUNTED INCOME WAS NOT RE CEIVED FROM THE BUSINESS ACTIVITIES I.E. SELLING OF THE FLATS AND THE UNACCOUNTED INCOME DECLARED WOULD BE TAXED UNDER THE YEAR 'INCOME FROM OTHER SOURCES' INSTEAD OF 'BUSINESS INCOME'. 7. THE ASSESSEE, DURING THE ASSESSMENT PROCEEDINGS FURNISHED THE REPLY MENTIONING THAT THE DISCLOSURE OF RS.23.69 CR ORES WAS RELATED TO THE INCOME OF THE FIRM BASED ON DIARY/NOTE BOOK IMPOUND ED AS PER ANNEXURE BS-2. THE SAID DIARY/NOTE BOOK CONTAINED THE DETAIL S OF 'ON MONEY' RECEIVED ON THE DIFFERENT PROJECTS. IT WAS SUBMITTE D THAT THE ASSESSEE FIRM HAD UNDERTAKEN THE PROJECT OF 'SWASTIK RESIDENCY' A ND ON PAGE 6 TO 10 OF THE SAID DIARY/NOTE BOOK, THE DETAILS OF 'ON MON EY' RECEIVED AGGREGATING TO RS.4.9 CRORES IN RESPECT OF SAID PRO JECT WERE MENTIONED AND THE ASSESSEE FIRM DID NOT CARRY ANY OTHER ACTIV ITY/BUSINESS OTHER THAN THE PROJECT OF SWASTIK RESIDENCY. IT WAS FURTHER SU BMITTED THAT THE DETAILS SUCH AS NAME AND ADDRESS OF THE PURCHASER, FLAT NO. ETC. WERE NOT AVAILABLE AND COULD NOT BE COMPLIED WITH FROM THE S AID RECORD. THE A.R. OF THE APPELLANT CONTENDED THAT THE PROJECT SWASTIK RESIDENCY WAS AN ELIGIBLE PROJECT FOR DEDUCTION U/S.80IB AND SINCE T HE ADDITIONAL UNDISCLOSED INCOME OF RS.4.9 CRORES PERTAINED TO TH E SAID ELIGIBLE PROJECT, THE ASSESSEE WAS ENTITLED TO DEDUCTION U/S.80IB OF THE ACT. 8. THE ASSESSING OFFICER ALSO OBSERVED THAT THE ASS ESSEE FIRM ITSELF HAS ADMITTED THAT NO DETAILS WERE MENTIONED IN THE PAGES OF DIARY WHICH - 5 - PROVED THAT THE ASSESSEE HAD NO SUPPORTING EVIDENCE TO SUPPORT ITS ARGUMENTS. THE ASSESSING OFFICER, HOWEVER, AGREED T HAT 'SWASTIK RESIDENCY PROJECT' IS AN ELIGIBLE PROJECT AND DEDUC TION U/S.80IB IS ALLOWABLE IN RESPECT OF BUSINESS INCOME EXCLUDING O FFERED UNDISCLOSED INCOME OF RS.4.9 CRORES. HE HAS CONCLUDED THAT SINC E THE ASSESSEE FAILED IN PROVING THE SAID OFFERED INCOME AS EARNED AS 'ON MONEY' FROM THE PROJECT OF THE ASSESSEE FIRM, IT COULD NOT BE SAID THAT UNDISCLOSED INCOME WAS 'BUSINESS INCOME' OF THE ASSESSEE AND ACCORDING TO HIM IT WAS LIABLE TO BE TAXED UNDER THE HEAD 'INCOME FROM OTHER SOURC ES' WHERE THE DEDUCTION U/S.80IB COULD NOT BE ALLOWED. 9. THE ASSESSING OFFICER, THUS HAS HELD THAT OUT OF TOTAL PROFIT OF RS.5,70,03,155/-THE ONLY BUSINESS INCOME OF RS.80,0 3,155/- (RS.5,70,03,155 - RS.4,90,00,000] IS ELIGIBLE FOR D EDUCTION U/S.80IB OF THE I.T. ACT. 10. ON THE OTHER HAND ASSESSEE CONTENDED THAT THE D URING THE COURSE OF SEARCH, ONE OF THE PARTNER OF THE FIRM LATE SHRI KA RSHANBHAI PRAJAPATI HAS MADE TOTAL DISCLOSURE OF RS.23,69,00,000/- IN CASE OF FIRMS BUSINESS INCLUDING DISCLOSURE OF RS.4,90,00,000/- IN THE FIR M BASED ON THE DIARY/NOTE BOOK SIZED DURING THE SEARCH IN SARGAM GROUP BEING INCOME/RECEIPT OF THE PROJECT SWASTIK RESIDENCY B ELONGING TO THE FIRM. 11. THE ASSESSEE'S ONLY SOURCE OF INCOME IS INCOME FROM THE DEVELOPMENT OF PROJECT NAMELY 'SWASTIK RESIDENCY'. THIS INCOME OF THIS PROJECT IS ELIGIBLE FOR DEDUCTION U/S 80IB(10). THE DEDUCTION HAS BEEN - 6 - ALLOWED IN AY 2010-11 AFTER DUE VERIFICATION AND TH ERE IS NO DISPUTE ABOUT THE ELIGIBILITY OF DEDUCTION OF THE PROJECT U /S 801B(10). THE ASSESSEE HAS CLAIMED DEDUCTION OF RS.5,70,03,155/- U/S 801B(10) INCLUDING DISCLOSURE INCOME OF RS. 4,90,00,000/- BE ING PROJECT 'SWASTIK RESIDENCY' ELIGIBLE HOUSING PROJECT U/S 80IB(10). T HE ASSESSING OFFICER HAS TREATED DISCLOSURE INCOME OF RS.4,90,00,000/- A S OTHER INCOME AND DISALLOWED DEDUCTION U/S 80IB(10). 12. THE ASSESSEE IS A FIRM ENGAGED IN BUSINESS OF D EVELOPMENT, CONSTRUCTION OF FLATS ETC. ITS ONLY SOURCE OF INCOM E IS FROM THE DEVELOPMENT OF PROJECT NAMELY 'SWASTIK RESIDENCY'. INCOME OF RS. 4,90,00,000/- HAS BEEN DISCLOSED BASED ON THE DIARY /NOTE BOOK SIZED DURING THE SEARCH IN 'SARGAM' GROUP BEING INCOME/RE CEIPT OF THE PROJECT 'SWASTIK RESIDENCY' BELONGING TO THE FIRM. THE DIAR Y RECORDS RECEIPT TRANSACTIONS OF THE VARIOUS PROJECTS OF THE GROUP I NCLUDING PROJECT OF THE FIRM 'SWASTIK RESIDENCY'. ALL CIRCUMSTANCES SUGGEST AND LEAD TO THE UNEQUIVOCAL DECISION THAT INCOME OF DISCLOSURE OF R S. 4,90,00,000/- IS THE PROJECT INCOME/BUSINESS INCOME. 13. DETAILS OF DISCLOSURE MADE ON THE BASIS OF DIAR Y ARE AS BELOW: NAME OF PROJECT NAME OF FIRM AMOUNT REMARK SWASTIK RESIDENCY SARSWAT ENTERPRISE 4,90,00,000/- 80IB PROJECT. DISCLOSURE AMOUNT TREATED AS OTHER INCOME AND 80IB DEDUCTION IS DISALLOWED FOR DISCLOSED AMOUNT. SWASTIK MILESTONE MILESTONE ENTERPRISE 3,90,00,000/- 80IB PROJECT. DISCLOSURE AMOUNT TREATED AS OTHER - 7 - INCOME AND 80IB DEDUCTION IS DISALLOWED FOR DISCLOSED AMOUNT. SWASTIK WOODS WOODS ENTERPRISE 3,30,00,000/- NON 80IB PROJECT. DISCLOSURE AMOUNT TREATED AS BUSINESS INCOME. SWASTIK VIHAR VIHAR ENTERPRISE 2,30,00,000/- NON 80IB PROJECT. DISCLOSURE AMOUNT TREATED AS BUSINESS INCOME. SWASTIK UNIVERSAL VIBHUTI ORGANISER PVT. LTD. 9,29,00,000/- NON 80IB PROJECT. DISCLOSURE AMOUNT TREATED AS BUSINESS INCOME. 14. FROM THE ABOVE TABLE, IT CAN BE SEEN THAT OUT O F 5 FIRMS IN WHICH DISCLOSURES ARE MADE, ONLY IN CASE OF 2 FIRMS IN WH ICH DEDUCTION U/S 80IB(10) IS CLAIMED, AMOUNT OF DISCLOSURE IS TAXED UNDER THE HEAD 'INCOME FROM OTHER SOURCES' AND IN OTHER 3 ASSESSES , THE SAME IS TAXED AS BUSINESS INCOME. 15. LATE SHRI KARSHANBHAI PRAJAPATI IN HIS STATEMEN T VERY CATEGORICALLY STATED THAT THE SOURCE IS THE PROJECT. 16. IN CASE OF ACIT CENTRAL CIRCLE 1, SURAT VS. PAD MAVATI DEVELOPERS (ITA 268/AHD/2010 ORDER DTD. 21/09/2012) VERY CATEG ORICALLY HELD THAT IF THE AMOUNT OF DISCLOSURE HAD DIRECT AND PROXIMATE C ONNECTION WITH THE NORMAL BUSINESS OF CONSTRUCTION ACTIVITY, THE DISCL OSED INCOME IS FROM THE BUSINESS AND IS ELIGIBLE FOR DEDUCTION U/S 801B. 17. IN THE CASE OF THE CIT VS. SUMAN PAPER AND BOAR D LTD. [2009] 314 ITR 119 (GUJ.) AN OBSERVATION HAS BEEN MADE THAT MA NUFACTURING AND - 8 - SALE OF BOARD PAPER AND CRAFT PAPER HAPPENED TO BE THE ONLY SOURCE OF INCOME OF THE ASSESSEE, THEREFORE, THE AMOUNT DISCL OSED CONSEQUENCE UPON THE SEARCH PARTAKES THE CHARACTER OF BUSINESS INCOME AND ELIGIBLE FOR THE DEDUCTION U/S.801B/80IA OF THE L.T. ACT. 18. IN CASE OF VIRAT GEMS VS. DEPARTMENT OF INCOME TAX (ITA 3541 & 3756/AHD/2008 ORDER DTD. 15/11/2010) IT IS HELD THA T INCOME DISCLOSED BY THE ASSESSEE DURING IN COURSE OF SEARCH IS A BUSINE SS INCOME AND NOT INCOME FROM OTHER SOURCES. 19. HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE O F ACIT VS. PRABHUDAS PAREKH CASE NO, 18759/2001 DECIDED ON 27- 06-2001 HAS DISMISSED THE APPEAL OF THE REVENUE FILED AGAINST T HE ORDER OF THE TRIBUNAL AND IN THIS CASE THE TRIBUNAL IN ITA NO.24 08/AHD/1993 VIDE ORDER DATED 19-12-1999 WHILE DISMISSING THE APPEAL OF THE REVENUE HAS HELD AS FOLLOWS:- THEREFORE, AS LAID DOWN BY HON'BLE SUPREME COURT I N THE CASE OF MENTIONED ABOVE, THE PRACTICAL NOTING MUST BE APPLI ED TO FIND OUT THE HEAD OF INCOME. THE HEAD OF INCOME HAS TO BE DETERM INED FROM THE NATURE OF THE BUSINESS THE ASSESSEE WAS CARRYING ON AT THE TIME OF SEARCH. IN THIS PARTICULAR CASE, THE ASSESSEE WAS N OT CARRYING ON ANY OTHER ACTIVITY FOR EARNING THE INCOME. THEREFORE, T HE INCOME DISCLOSED BY THE ASSESSEE U/S.132(4) HAS TO BE ASSESSED UNDER BUSINESS INCOME FROM THE COMMON NOTION OF A PRACTICAL MAN. THE HEAD 'INCOME FROM OTHER SOURCES' IS A RESIDUAL HEAD AND THE INCOME HA S TO BE ASSESSED UNDER THAT HEAD ONLY IF THE SAME IS NOT COVERED UND ER ANY OTHER HEAD.' 20. IN CASE OF CIT VS. M/S. SHETH DEVELOPERS (P) LT D. IN INCOME TAX APPEAL NO.3724 OF 2010 DATED 27/07/2012, BOMBAY HIG H HELD THAT - 9 - INCOME DISCLOSED DURING SEARCH IS BUSINESS INCOME A S THE ASSESSEE IS ENGAGED BUSINESS OF CONSTRUCTION. 21. IT WAS OBSERVED BY THE LEARNED CIT THAT THE MAI N ISSUE OF CONTENTION ON WHICH THE ENTIRE DISCUSSION HAS BEEN MADE, IS THE NOTINGS ON PAGE NO.6 TO 10 OF THE DIARY/NOTE BOOK SEIZED DU RING THE COURSE OF SEARCH IN THE CASE OF APPELLANT GROUP OF CONCERNS A ND THE STATEMENT OF LATE SHRI KARSANBHAI PRAJAPATI, THE MAIN PERSON OF THE G ROUP. IT IS SEEN THAT THE DISCLOSURE MADE BY SHRI PRAJAPATI ON BEHALF OF THE DIFFERENT CONCERNS OF THE APPELLANT GROUP WAS MAINLY BASED ON THE NOTI NGS MADE IN THE DIFFERENT PAGES OF THE SAID DIARY. IT IS SEEN FROM THE PERUSAL OF THE PAGES OF THE SAID DIARY THAT ON PAGE FROM 6 TO 10, THERE IS A MENTION OF SR BELOW WHICH THE DATES ARE MENTIONED AGAINST WHICH T HE AMOUNTS RECEIVE D SUCH AS:- SR PAGE NO.6 12.05.2010 8,50,000 15.5 12,40,000 20.5 10,50,000 25.5 9,50,000 7.6 10,50,000 15.6 15,05,000 22.6 14,75,000 22. THE FIRST NOTING ON PAGE NO.6 IS DATED 12 TH MAY, 2010 AND THE LAST NOTING IS DTD. 22 ND JUNE,.2011. ON OTHER PAGES ALSO I.E. NO.7, 8, 9 & 1 0, SIMILAR NOTINGS HAVE BEEN DONE AND LAST ENTRY I.E. ON PAGE NO.10, IS DATED 6 TH JANUARY,2011 FOR AMOUNT OF RS.10,85,000/-. THE PER IOD FALLS IN ACCOUNTING YEAR 2010-11 I.E. A.Y.2011-12 AND THE TO TAL SUMS MENTIONED COMES TO RS.4.9 CRORES ON THE BASIS OF WHICH SHRI P RAJAPATI DECLARED THAT - 10 - THE UNACCOUNTED INCOME WAS EARNED IN RESPECT OF SWA STIK RESIDENCY (SR). IT IS SEEN THAT ON OTHER PAGES ALSO, SIMILAR DETAILS ARE MENTIONED E.G. FROM PAGE 1 TO 5 'SM', PAGE 11 TO 14 'SW', PAGE 15 TO 18 'VIHAR' AND FROM PAGE 19 TO 21 'SU' WHERE THE SIMILAR DETAILS L IKE DATES AND AMOUNTS ARE MENTIONED. THESE DETAILS ARE IDENTICAL AS IN TH E CASE OF THE APPELLANT FIRM AND THE NAME OF OTHER CONCERNS OF THE GROUP CA N BE EASILY DECIPHERED LIKE SWASTIK MILESTONE(SM), SWASTIK WOOD S (SW), SWASTIK VIHAR(SV), AND SWASTIK UNIVERSAL(SU) ETC. THE ENTRI ES MENTIONED IN THE RELEVANT PAGES (IN THE CASE OF THE APPELLANT FROM 6 TO 10), CLEARLY INDICATE THAT THE APPELLANT FIRM EARNED THE SAID INCOME OUT OF THE 'SWASTIK RESIDENCY PROJECT', AND TOTAL OF SUCH UNACCOUNTED I NCOME ENTERED IN THESE PAGES, WAS RS.4.9 CRORES FOR THE YEAR UNDER C ONSIDERATION WHICH WAS ADMITTED AS UNEXPLAINED INCOME EARNED OUTSIDE T HE BOOKS OF ACCOUNTS PERTAINING TO THE FIRM. 23. LEARNED CIT FURTHER HELD THAT HE IS OF THE CONS IDERED VIEW THAT INCOME OF RS. 4.9 CRORES DISCLOSED IN THE COURSE OF SEARCH OF THE APPELLANT FIRM, IS TO TREATED AS BUSINESS INCOME FROM THE C ONSTRUCTION ACTIVITY IS TO BE TAXED UNDER THE HEAD ONLY BUSINESS INCOME. AS REGARDS THE DEDUCTION U/S. 80IB, THE ASSESSING OFFICER, HIMSELF HAS ADMITTED THAT THE PROJECT SWASTIK RESIDENCY IS ELIGIBLE PROJECT FOR D EDUCTION U/S. 80IB OF THE ACT. THEREFORE, THE ASSESSING OFFICER WAS DIREC TED TO ALLOW DEDUCTION U/S. 80IB PROVIDED THAT OTHER CONDITIONS MENTIONED IN SECTION 80IB(10) ARE FULFILLED. ACCORDINGLY, THE DISALLOWANCE MADE B Y THE CIT IS DELETED. - 11 - 24. WE HAVE GONE THROUGH THE RELEVANT RECORD AND IM PUGNED ORDER AND PAPER BOOK FILED BY THE RIVAL PARTIES. IT IS CLEAR THAT ASSESSEE IS NOT HAVING ANY OTHER SOURCE OF INCOME EXCEPT INCOME FROM CONST RUCTION AND DEVELOPMENT OF THE HOUSING PROJECT. IN THE COURSE O F SURVEY NO EVIDENCE WAS FOUND THAT ASSESSEE IS CARRYING ON BUSINESS OTH ER THAN CONSTRUCTION OF THE HOUSING PROJECT VIZ. SWASTIK RESIDENCY. 25. EVEN THE DETAILS SUCH AS NAMES OF THE PURCHASER S, 'ON MONEY' ON EACH FLAT, DATE OF SALE DEED WERE NOT SUBMITTED BY THE APPELLANT, IT COULD NOT BE DENIED THAT THE ENTIRE AMOUNTS MENTIONED AGA INST DIFFERENT DATES REPRESENTED THE TOTAL AMOUNT OF 'ON MONEY' RECEIVED ON THOSE DATES UNDER THE PROJECT SWASTIK RESIDENCY WHICH WAS MENTIONED I N SHORT AS 'SR'. 26. ON THE BASIS OF SIMILAR NOTINGS ON THE OTHER PA GES OF THE SAME DIARY, THE DISCLOSURES WERE MADE IN THE CASE OF OTH ER PROJECTS I.E. SISTER CONCERNS OF THE APPELLANT GROUP, SIMILAR INFERENCE HAS BEEN DRAWN DURING THE COURSE OF SEARCH WHICH FORMED THE BASIS OF TOTA L DISCLOSURE OF RS. 23.69 CRORES BY SHRI KARSANBHAI PRAJAPATI, THE MAIN PERSON OF THE GROUP AND THE SAID DISCLOSURE WAS ACCEPTED BY THE DEPARTM ENT. 27. THE ASSESSING OFFICER ON THE IDENTICAL FACTS HA S HELD IN 3 OTHER CONCERNS OF THE GROUP I.E. M/S. WOOD ENTERPRISE (SW ASTIK WOODS), M/S. VIHAR ENTERPRISE (SWASTIK VIHAR) AND M/S. VIBHUTI O RGANISERS PVT. LTD. (SWASTIK UNIVERSAL), THE DISCLOSURE AS 'BUSINESS IN COME' AND ASSESSED ACCORDINGLY, WHEREAS IN THE CASE OF THE APPELLANT F IRM AND ANOTHER SISTER CONCERN I.E. M/S. MILESTONE ENTERPRISE (PROJECT SWA STIK MILESTONE), THE - 12 - SAID DISCLOSURE HAS BEEN TREATED AS 'INCOME FROM OT HER SOURCES' WHICH IS UNJUSTIFIED. 28. LEARNED AR HAS ALSO CITED A JUDGMENT OF NILKANT H DEVELOPERS VS. ITO - ITA NO. 2610/A/2014 WHERE IDENTICAL FACTS ARE INVOLVED. IN THIS CASE ALSO THE ASSESSEE HAS UNDERTAKEN NOT TO CLAIM THE DEDUCTION U/S. 80IB(10) AT THE TIME OF SURVEY BUT IT WAS CLAIMED I N THE RETURN OF INCOME AFTERWARDS. THIS CASE WAS FOLLOWED IN THE CASE OF A CIT VS. AMBICA ENTERPRISE - ITA NO. 679/A/2014. IT IS TO BE NOTED THAT THE SEARCH WAS CONDUCTED ON THE SAME DAY IN THE CASE OF M/S. AMBIC A ENTERPRISE WHEN THE SEARCH WAS CONDUCTED IN THE CASE OF ASSESSEE WH ERE IDENTICAL FACTS ARE INVOLVED. 29. IN VIEW OF THE FOREGOING OBSERVATION, WE DISMIS SED THE APPEAL OF THE REVENUE. 30. NOW WE TAKE UP THE REVENUES APPEAL IN ITA NO. 2880/AHD/2013. REVENUE HAS BEEN TAKEN FOLLOWING GRO UND OF APPEAL: THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING ADDITION OF RS.3,90,00,000/- MADE ON ACCOUNT OF DISALLOWANCE OF DEDUCTION U/S. 80IB(10) OF THE ACT, IGNORING THE FACT THAT THE ASS ESSEE DID NOT PRODUCE ANY SUPPORTING EVIDENCES WHICH CAN PROVE THAT THE U NACCOUNTED INCOME WAS ACTUALLY RECEIVED FROM THE PROJECT OF THE ASSES SEE. 31. IN THIS CASE, SEARCH WAS ALSO CONDUCTED ALONG W ITH M/S. SARASWAT ENTERPRISE AND FACTS ARE IDENTICAL IN THIS CASE, FO R THE SAKE OF BREVITY WE DONT WANT TO REPEAT HERE. - 13 - 32. IN THIS CASE, LEARNED CIT(A) ALLOW THE APPEAL. 33. WE DO NOT FIND ANY INFIRMITY TO INTERFERE IN TH E ORDER PASSED BY THE LEARNED CIT(A) AND SIMILARLY WE DISMISSED THE APPEA L OF THE ASSESSEE. 34. AS WE HAVE ALREADY DISMISSED THE REVENUES APPE AL IN ITA NO.2879/AHD/2013. 35. IN THE RESULT, BOTH THE APPEALS IN ITA NO.2879/ AHD/2013 AND ITA NO. 2880/AHD/2013 ARE DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 27/04/2017 SD/- SD/- IZEKSN DQEKJ IZEKSN DQEKJ IZEKSN DQEKJ IZEKSN DQEKJ EGKOHJ IZLKN EGKOHJ IZLKN EGKOHJ IZLKN EGKOHJ IZLKN YKS[KK LN YKS[KK LN YKS[KK LN YKS[KK LNL; L; L; L; U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; (PRAMOD KUMAR) ( MAHAVIR PRASAD ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 27/04/2017 PRITI YADAV, SR. PS ! ' ! COPY OF THE ORDER FORWARDED TO : 1. '% / THE APPELLANT 2. &'% / THE RESPONDENT. 3. 234+ ' 5+ / CONCERNED CIT 4. ' 5+ / THE CIT(A)-II, AHMEDABAD. 5. 67 8+(34 ,340 2 / DR, ITAT, AHMEDABAD 6. 8 9: ) ! GUARD FILE. # $ / BY ORDER, & 6++ //TRUE COPY// %/$ &' ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD TRUE COPY